BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

FIFTH SECTION

Application no. 27793/08
Volodymyr Mykhaylovych LOPUSHANSKYY
against Ukraine
lodged on 23 April 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Volodymyr Mykhaylovych Lopushanskyy, is a Ukrainian national who was born in 1955 and lives in the town of Yuzhnoukrayinsk, Ukraine.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 25 and 29 March 2004 criminal proceedings were instituted against the applicant for extortion following complaints of private persons. On 30 March 2004 the applicant was arrested as a suspect and detained until 1 April 2004.

On 20 April 2004 the Yuzhnoukrayinskyi Town Court quashed the decisions of 25 and 29 March 2004 as unsubstantiated.

In September 2005 the applicant instituted proceedings in the Yuzhnoukrayinsky Town Court claiming compensation for unlawful arrest, allegedly inhuman treatment in detention (poor food and dirty linen, and impossibility to receive any parcels from the outside) and unlawfully instituted criminal proceedings against him. He claimed 145,016.04 Ukrainian Hryvnas (UAH) in compensation for pecuniary damage and UAH 150,000 for non-pecuniary damage. These amounts included UAH 81,601.68, representing the value of a car allegedly seized from the applicant, and UAH 25,000, which he had paid to a private individual, Ts., allegedly at the police officers’ request.

On 5 May 2006 the court partly found for the applicant and awarded him UAH 8,585 in compensation for pecuniary damage and UAH 26,000 in compensation for non-pecuniary damage. The court, in particular, noted the impossibility to receive any parcels in detention.

The applicant, the State Treasury of Ukraine and the Mykolayiv Regional Prosecutor’s Office appealed against that decision. By letter of 6 July 2006 the Mykolayiv Regional Court of Appeal sent the applicant copies of the defendants’ appeals and informed him that he could comment on those appeals by 14 July 2006. A copy of the envelope provided by the applicant bears a stamp reading 14 July 2006. According to the applicant it also contained a court summons for 19 July 2006.

On 19 July 2006 the Mykolayiv Regional Court of Appeal quashed the decision of 5 May 2006 and awarded the applicant UAH 5,000 (around 750 euros at the material time) in compensation for non-pecuniary damage and UAH 1,000 in costs and expenses. In rejecting the applicant’s claims for compensation for pecuniary damage the court found that the car did not belong to the applicant and the State was not required to reimburse him money paid to a private individual. According to the applicant, this decision was taken in his absence since he had received the letter of 6 July 2006 and a court summons on the day of the hearing.

On 26 November 2007 the Kherson Regional Court of Appeal, acting as a court of cassation, rejected the applicant’s appeal on points of law.

COMPLAINTS

The applicant complains under Article 5 of the Convention that he was unlawfully arrested. He further complains that while in detention he was treated in an inhuman manner.

The applicant complains under Article 6 § 1 of the Convention about the length of the compensation proceedings, in particular, about the allegedly lengthy consideration of his cassation appeal. He also complains that the decision of the court of appeal was taken in his absence.

The applicant finally challenges the amount of compensation awarded and invokes Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1.  Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected in the proceedings before the Mykolayiv Regional Court of Appeal, which were held in the absence of the applicant?

2.  Can the applicant still claim to be a victim of a violation of Articles 3 and 5 of the Convention, within the meaning of Article 34?

3.  If yes,

a)  has the applicant been subjected to inhuman or degrading treatment in detention, in breach of Article 3 of the Convention? In particular, were the conditions of his detention compatible with Article 3 of the Convention?

b)  was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?

c)  did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?